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November 24, 1971
Honorable John A. Bagnariol
State Representative, 35th District
10450 61st Avenue South
Seattle, Washington 98178
Cite as: AGLO 1971 No. 129 (not official)
By letter previously acknowledged you requested our opinion on certain questions pertaining to the conduct of bingo and amusement games under the provisions of chapter 280, Laws of 1971, 1st Ex. Sess. We paraphrase the two questions to be herein considered as follows:
(1) By what types of organizations may either bingo or amusement games be conducted under chapter 280, supra, without being subject to state criminal sanctions?
(2) May a bona fide charitable or nonprofit organization rent the facilities of a commercial restaurant or hotel for the purpose of conducting games of bingo and/or amusement games for the benefit of such organization?
Before addressing ourselves to these two questions, we would acknowledge a third question contained in your request. This question relates to the legality, under chapter 280, supra, of so-called "donation bingo" whereby, instead of being charged a fixed price for each bingo card played, the participants are simply called upon to make a "donation" to the organization conducting the game. The primary issue raised by this question is whether the payment called for results in the staking or risking of something of value on the outcome of a contest of chance; i.e., bingo. See the definition of "gambling" in § 2 (1) of chapter 280, as follows:
". . . A person engages in gambling if he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he or someone else will receive something of value in the event of a certain outcome. . . ."
[[Orig. Op. Page 2]]
Stated another way, the question is whether the payment of what is essentially an admissions charge (whether by way of "donation" or otherwise) to enter a room where bingo or other games involving some degree of chance may then be played without further specific payments constitutes a staking of something of value within the meaning of this definition. Regretably, this question is sufficiently analogous to certain matters presently pending before our courts to render it inappropriate, from a policy standpoint, for this office to express an opinion thereon at the present time. The attorney general has, since statehood, consistently declined to issue opinions on questions already in litigation before the courts, or where litigation is imminent, believing that in such a case the proper tribunal to resolve the question is the court itself.
In this case, the legal significance of an "admissions charge," in terms of § 2 (1) of chapter 280, supra, is now before our state supreme court in Seattle Times Co. v. Tielsch, Supreme Court Cause No. 42112, relating to the Times "Guest Guesser" contest. In addition, this issue may also be involved in a pending criminal action in King county pertaining to the operations of certain card clubs, as reported in the news media recently.
If, when these cases have been completed, you still desire to have our opinion on the status of "donation bingo," please let us know and we shall be happy then to consider this question. In the meantime, rather than holding this entire opinion in abeyance until then, we will proceed herein to answer your first two questions ‑ in the manner set forth in the following analysis.
For a general resume of the pertinent provisions of chapter 280, Laws of 1971, 1st Ex. Sess., supra, see AGO 1971 No. 21, copy enclosed. In this opinion to State Senator Damon R. Canfield, we dealt at some length with the applicability of this new act to bingo, raffles, amusement games, other gambling games, and games of skill, when conducted as part of an agricultural fair.
The basic approach of the act is to classify all gambling activity as either professional or nonprofessional, according to its type and the nature of the organization which conducts it. Professional gambling is subject to a range of criminal sanctions, including a fine of up to $100,000 and five years imprisonment, under § 3 of the act. However, this section does not apply to "nonprofessional gambling activities" ‑ within the scope of which are both the [[Orig. Op. Page 3]] bingo and amusement games to which you have referred, when these games are conducted in accordance with the definitions thereof set forth in § 2 (11) and (13) of the act.1/ These definitions read as follows:
"(11) 'Bingo' means a game in which prizes are awarded on the basis of designated numbers or symbols on a card conforming to numbers or symbols selected at random and in which no cards are sold except at the time and place of said game, when said game is conducted by a bona fide charitable or nonprofit organization which does not conduct or allow its premises to be used for conducting bingo on more than three occasions per week and which does not conduct bingo in any location which is used for conducting bingo on more than three occasions per week, or if an agricultural fair authorized under chapters 15.76 and 36.37 RCW, which does not conduct bingo on more than twelve consecutive days in any calendar year, no person other than a bona fide member of said organization takes any part in the management or operation of said game, and no person who takes any part in the mamagement or operation of said game takes any part in the management or operation [[Orig. Op. Page 4]] of any game conducted by any other organization or any other branch of the same organization and no part of the proceeds thereof inure to the benefit of any person other than the organization conducting said game." (Emphasis supplied.)
"(13) 'Amusement game' means a game played for entertainment in which:
"(a) The contestant actively participates;
"(b) The outcome depends in a material degree upon the skill of the contestant;
"(c) Only merchandise prizes are awarded;
"(d) The outcome is not in the control of the operator;
"(e) The wagers are placed, the winners are determined, and a distribution of prizes or property is made in the presence of all persons placing wagers at such game; and
"(f) Said game is conducted by a bona fide charitable or nonprofit organization, no person other than a bona fide member of said organization takes any part in the management or operation of said game, including the furnishing of equipment, and no part of the proceeds thereof inure to the benefit of any person other than the organization conducting such game or said game is conducted as part of any agricultural fair as authorized under chapters 15.76 and 36.37 RCW." (Emphasis supplied.)
The underscored portions of these two definitions provide us with the basis for our answer to your first question. Both bingo and amusement games, as thus defined, constitute "gambling" under the definition contained in § 2 (1), supra, where something of value is risked on the outcome thereof. Except as provided in § 16, supra, all gambling other than that involving only "players" is professional gambling. See, § 2 (4). By the terms of § 2 (3) "player" means:
[[Orig. Op. Page 5]]
". . . a natural person who engages, on equal terms with the other participants and solely as a contestant or bettor, in any form of gambling in which no person may receive or become entitled to receive any profit therefrom other than personal gambling winnings, and without otherwise rendering any material assistance to the establishment, conduct or operation of a particular gambling activity. . . ."
Therefore, unless either bingo or amusement games constituting gambling are conducted by one of those organizations mentioned in the above underscored portions of the definitions of those games ‑ i.e., a bona fide charitable or nonprofit organization (see, § 2 (14) as quoted on pp. 4-5 of AGO 1971 No. 21) or an agricultural fair ‑ those games are subject to state criminal sanctions under § 5 of the act. For an outline summary of the conditions which must be met by such organizations in order to operate bingo or amusement games under the act, see "Guidelines for Application of Chapter 280, Laws of 1971, Ex. Sess.," copy enclosed.
We turn next to your second question ‑ i.e., the rental or other use of the facilities of a commercial restaurant or hotel for the conduct of bingo games and/or amusement games by an organization mentioned in question (1), supra. We begin by noting the absence of any statutory restrictions in this area with respect to the conduct of amusement games (as above defined), except to the limited extent that § 2 (13), supra, has the effect of prohibiting a lease under which the rental is to be a percentage of the proceeds derived from operation of the games. This subsection requires that "no part of the proceeds thereof inure to the benefit of any person other than the organization conducting such game. . . ."
The matter of bingo, however, is a bit more complicated. First, of course, within the definition of this game itself, supra, it will be seen that where conducted by a bona fide charitable or nonprofit organization the game of bingo may not be played at the same location "on more [[Orig. Op. Page 6]] than three occasions per week,"2/ irrespective of whether or not the location is owned by the organization conducting the game.
Secondly, any organization conducting bingo games must comply with the following significant provisions of § 11 of the act:
". . .
"(a) No person, firm, association, corporation or organization other than as under the provisions of this 1971 amendatory act shall conduct such game, or shall obtain a lease for or otherwise make available for conducting bingo therein, a hall or other premises, for any consideration whatsoever, direct or indirect.
"(b) No bingo games shall be held, operated or conducted on or within any leased premises if rental under such lease is to be paid, wholly or partly, on the basis of a percentage of the receipts or net profits derived from the operation of such game, nor shall the rental under such lease exceed the usual rental for such premises in the same locality.
"(c) No bingo game shall be held, operated or conducted if the compensation to any person taking part in the management or operation of such game is based upon a percentage of the receipts or net profits derived from the operation of such game."
Based upon this statute it is our opinion that (so long as the location is not thereby used for bingo games more than three times per week) a bona fide charitable or nonprofit organization may rent or lease the premises of a restaurant or hotel if the rent to paid is not based upon a percentage of the receipts of the operation of the [[Orig. Op. Page 7]] bingo game, and is that normally charged others for use of the same premises. The remaining restrictions in this section appear to have been inserted to insure that the use of premises other than those of the bona fide charitable or nonprofit organization itself will not be used as a ruse to cover the professional management of bingo games. However, they do not prohibit the use of such premises on a rental basis, in our judgment, where there is compliance with subsection (b), as above quoted.
Specifically, we do not regard § 11 (a) as a prohibition of all leases or rentals of premises for the conduct of bingo games, for to accept such an interpretation would be to ignore cardinal rules of statutory construction and render meaningless the restrictions placed on leasing in subsections (b) and (c) of § 11. See, Anderson v. City of Seattle, 78 W.D.2d 193 [[78 Wn.2d 201]], 471 P.2d 87 (1970); State ex rel. Tarver v. Smith, 78 W.D.2d 141 [[78 Wn.2d 152]], 470 P.2d 172 (1970). Instead, we view all of the prohibitions in this subsection, including that against leasing or otherwise making premises available for any consideration, as being limited to activities occurring in a manner other than as provided for "under the provisions of this 1971 amendatory act. . . ."
We trust the foregoing will be of some assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Kenneth C. Grosse
Assistant Attorney General
*** FOOTNOTES ***
1/The basis for this proposition is § 16, which provides:
"A person or an organization is not engaged in 'professional gambling' as defined in section 2, subsection (5) of this 1971 amendatory act when (1) such person or organization is engaged in such nonprofessional gambling activities as bingo, raffles, or amusement games, all as defined in this 1971 amendatory act." (Emphasis supplied.)
The constitutionality of this particular section of the act is currently involved in litigation in a case presently pending before the Thurston County Superior Court, Lennartz v. State of Washington, Cause No. 45050. However, it is our position that even if this section is declared invalid as authorizing a lottery in violation of Article II, § 24 of our constitution, the remainder of the act will continue in effect with professional gambling being subject to both criminal and civil sanctions but with nonprofessional gambling being subject to civil sanctions only.
2/In the case of an agricultural fair, the only time limitation is that the fair itself does not conduct bingo on more than twelve consecutive days in any calendar year. See, § 2 (11).